Key cases in mental health law, from Bournewood to AGNI

The facts in more detail

HL was 48, autistic since birth, unable to speak, with limited understanding and a history of self-harm. He'd lived at Bournewood Hospital for over 30 years. From 1994 he lived successfully with carers for three years (DoLS Code 2.22).

On 22 July 1997 he self-harmed at his day centre and was readmitted informally. His carers wanted him home, and the hospital refused. He was detained under the Act on 29 October 1997, as soon as the Court of Appeal signalled it would find in his favour. His carers first saw him again on 2 November 1997 (DoLS Code 2.22).

What the European Court decided

In October 2004 the court held that HL had been deprived of his liberty. The key factor was that staff exercised complete and effective control over his care and movements. His doctor was clear she'd have stopped him leaving, and would have considered s3 (DoLS Code 2.22).

That breached Article 5(1), because there was no procedure prescribed by law. It also breached Article 5(4), because he had no way of applying quickly to a court (DoLS Code, chapter 1).

Why the gap mattered

A detained patient has the tribunal, Part 4 second opinions and rights information. An informal patient has no tribunal, no s132 rights information and, for most treatments, no second opinion. HL was controlled as tightly as a detained patient, with none of the protection.

The 2007 Act's answer was a separate scheme in the MCA for people in hospitals and care homes. Anywhere else, such as supported living or the person's own home, a deprivation of liberty needs a Court of Protection order (DoLS Code 1.20).

What it means on the ward

The lesson is about patients who go along with things. Someone who lacks capacity to consent to admission for mental disorder, and is likely to be deprived of liberty, should never be admitted informally, content or not (Code 13.53). Use the MHA, or DoLS if they're eligible.

Informal admission still suits someone with capacity who agrees to it (s131). For someone who lacks capacity, ask first whether the care will amount to a deprivation of liberty. After AGNI that's a multi-factorial judgement, so record how you reached it.

Bournewood after AGNI

The court's phrase, under continuous supervision and control and not free to leave, became Cheshire West's acid test (Cheshire West [49]). AGNI has since held that the European Court has never adopted an acid test, generally or for people who lack capacity.

The safeguards point stands. A deprivation of liberty needs a lawful procedure and a quick route to a court. In the exam, Bournewood is the case that led to DoLS.

Who must have regard to the Code

Section 118(2D) says the people the Code guides must have regard to it: doctors, approved clinicians, hospital managers and staff, and AMHPs. It's statutory guidance for local authorities too. Police and ambulance services aren't bound, but the Code says it will help them (Code introduction).

The MCA Code works the same way. Anyone acting professionally or for pay must have regard to it, and explain any departure (MCA s42(4); MCA Code introduction).

What cogent reasons look like

Munjaz allows a considered departure, not a convenient one. The Code says courts will scrutinise the reasons to make sure there's a sufficiently convincing justification (Code introduction).

So record the reason when you decide, and make it specific to the patient or the setting. Document and justify any departure from the Code or a guiding principle, because CQC looks for it on inspection (Code 1.24).

The same discipline applies to blanket restrictions. A ward-wide rule needs a clear justification for that setting, the hospital managers' agreement and documented reasons. It should never be for the provider's convenience (Code 1.6).

Departing from the Code: what to record

1. Name the paragraph of the Code you're departing from.
2. Say why it doesn't fit this patient or this setting.
3. Say what you'll do instead, and why that still meets the Act and the guiding principles.
4. Record who was involved, and when you'll review it.

Seclusion under today's Code

The 2015 Code sets out a seclusion procedure for every provider's policy (Code 26.112). If a psychiatrist didn't authorise seclusion, there must be a medical review within an hour. Two nurses review every two hours, and doctors every four hours until the first multidisciplinary review.

An independent multidisciplinary review follows eight hours' continuous seclusion, or 12 hours' intermittent seclusion within 48 hours. A local policy that cuts any of that needs reasons that would satisfy Munjaz.

The Strasbourg sequel

Mr Munjaz went on to the European Court. In Munjaz v UK (2012) it held that his periods of seclusion for safety reasons weren't a deprivation of liberty. Their purpose was to contain disturbed behaviour, not to punish (as described in AGNI [130]).

AGNI relied on that case to say the purpose of a measure can matter when you decide whether someone is deprived of liberty. That's one reason purpose is now part of the multi-factorial test.

In the exam

Expect a question on the Code's status. It's statutory guidance you must have regard to, departed from only with cogent, recorded reasons. Avoid the two wrong answers: that it's binding law, or that it's optional advice.

Where the rule comes from

Schedule 1A of the MCA says who DoLS can't cover. In case E, someone is within the scope of the MHA but not subject to it. They're ineligible if the authorisation would make them a mental health patient and they object (Sch 1A paras 2 and 5). For someone already detained in hospital under the Act, DoLS is ruled out altogether (case A).

Within scope means a s2 or s3 application could be made and they could be detained under it. When you test the s3 necessity limb, assume the treatment can't be given under the MCA (Sch 1A para 12(5)). That's GJ's point, in statute.

How to apply it

1. Ask whether the arrangements amount to a deprivation of liberty at all. After AGNI, that's a multi-factorial judgement.
2. Ask what the deprivation of liberty is for. If it's mainly for treating a physical illness, DoLS or the court can cover it, even if the person also has a mental disorder.
3. If it's for treating mental disorder in hospital, ask whether they object to being there or to some of the treatment. The question is whether they object, not whether the objection is reasonable (Code 13.51).
4. If they object and meet the criteria for s2 or s3, they're ineligible for DoLS. Use the MHA.
5. If they lack capacity and don't object, either regime may be available. Choose on the facts, not out of habit, and record why (Code 13.49, 13.58 and 13.60).

Deciding whether they object

Look at their behaviour, their wishes and feelings, and their views, beliefs and values (Sch 1A para 5(6)). Past wishes count only so far as it's still appropriate to rely on them (para 5(7)). If an attorney or deputy has validly consented to each thing they object to, that condition falls away (para 5(5)). If capacity fluctuates, the Code leans towards using the MHA (Code 13.54).

A worked example

Any deprivation of liberty here is for treating a physical illness, so the MHA isn't the route; DoLS is. If he were on a psychiatric ward for his dementia, met the s2 or s3 criteria and objected, he'd be ineligible for DoLS and you'd use the MHA. If he had capacity, the MCA wouldn't apply at all, and the decision about antibiotics would be his. MHA or MCA? walks you through it.

The facts in more detail

Melanie Rabone was 24, with a severe recurrent depressive disorder. In April 2005 she was admitted informally after tying a lamp flex round her neck, and kept on 15-minute observations. Her notes said that if she tried to leave, she should be assessed for detention ([3] and [4]).

Her father urged staff not to let her home too soon. On 19 April she was given two days' and nights' home leave, and she hanged herself the next day ([4] to [6]).

What the Supreme Court decided

• The duty applied. She was vulnerable, the trust had assumed responsibility for her, and she was under its control. The difference from a detained patient was one of form, not substance ([34]).
• The risk was real. That means substantial or significant, not remote or fanciful. It doesn't have to be likely ([38]).
• And immediate. That means present and continuing at the time of the decision, not a risk that might arise later. It existed when she left and grew over the leave ([39] to [41]).
• The duty was breached. The standard is reasonableness. It was common ground that no reasonable psychiatrist would have granted that leave ([43]).
• Her parents could claim. Close family can be victims under Article 2, and settling their negligence claim didn't change that.

Where the duty applies

The House of Lords had already held in Savage that the duty protects detained patients at real and immediate risk of suicide ([31] and [32]). Rabone extends it to informal psychiatric patients, because of their vulnerability, the trust's control and its assumed responsibility. In ordinary medical negligence cases there's generally no operational duty ([33]).

What it means on the ward

Treat leave for a high-risk informal patient as seriously as s17 leave. Record the risk assessment, any family concerns and why leave is safe. Weigh the patient's autonomy openly too; the court treated it as part of what's reasonable ([43]).

If a high-risk informal patient insists on leaving, think about the s5(2) holding power or an assessment. The court said that if she'd insisted on leaving, the trust could and should have used the Act to stop her ([34]).

In the exam

Know the operational duty: a real and immediate risk to life that the trust knew or ought to have known about, and a failure to take reasonable steps against it. Rabone extended it to informal psychiatric inpatients. The trap is thinking it protects only detained patients. That's what the High Court and Court of Appeal held, and the Supreme Court reversed them ([1]).

The facts in more detail

Mr James was about 68 when he was admitted in May 2012 with a problem with his stoma. Infection, a stroke, kidney injury and a cardiac arrest needing six minutes of CPR followed. He spent months on a ventilator in critical care ([2]).

The trust asked for a declaration that it could withhold CPR, invasive support for his circulation and renal replacement therapy. He died on 31 December 2012. It was the first MCA case to reach the Supreme Court ([1]).

What the Supreme Court decided

• Ask the right question. It's whether giving the treatment is in the person's best interests, not whether withholding it is. If it isn't in their best interests, it would be unlawful to give it ([22]).
• Welfare in the widest sense. Look at medical, social and psychological welfare, the treatment, its chances and its likely outcome, and the person's likely attitude to it. Consult those who care for them ([39]).
• Futility. A treatment isn't futile just because it can't cure the underlying illness. It may still bring some benefit ([43]).
• Recovery. It means getting back to a quality of life the person would regard as worthwhile, not to full health ([40] and [44]).
• Past views may have changed. Someone's earlier views may shift under the strain of their illness. Take account of their wishes, beliefs and values as far as you can find them ([45]).

What it means in practice

Neither a patient nor a court can make doctors give a particular treatment. The court can only decide whether a treatment on offer is in the patient's best interests ([18]). So frame the decision as whether to offer the treatment, and record what the person would think of it.

When you consult family under s4(7), ask what the person would want, not what the family wants. As Lady Hale put it, it's not for others to say that a life the patient would regard as worthwhile isn't worth living ([44]). See best interests.

If the team and family can't agree, the question can go to court before the treatment is needed. Lady Hale saw nothing in the judgment inconsistent with the GMC's end of life guidance ([47]).

The outcome

The appeal was dismissed. On the fresh evidence, the Court of Appeal's declarations were right, but its reasoning on the law was wrong. The trial judge had applied the law correctly ([46] to [48]).

In the exam

Aintree is the case for best interests in the widest sense: medical, social and psychological, seen from the patient's point of view. Pair it with s4 of the MCA, which it interprets.

The three people in more detail

P had cerebral palsy and Down's syndrome and needed 24-hour care. From November 2009 he lived in a staffed bungalow with one-to-one support, and staff sometimes had to intervene in his behaviour (press summary).

MIG and MEG were sisters, 16 and 15 when care proceedings began in 2007. MIG lived with a foster mother she was devoted to. MEG lived in a residential home and sometimes needed restraint and tranquillising medication.

What the Supreme Court decided

Judgment came on 19 March 2014: unanimous for P, and four to three for the sisters. Lady Hale said that what it means to be deprived of liberty must be the same for everyone, disabled or not ([46]).

The key features, taken from HL v UK, were continuous supervision and control and not being free to leave ([49]). The person's compliance or lack of objection, the normality of the placement and its purpose were all irrelevant ([50]).

Because people like P are so vulnerable, she said the courts should err on the side of caution. They needed periodic independent checks that the arrangements were in their best interests ([57]).

The dissent

Lord Carnwath, Lord Hodge and Lord Clarke dissented on the sisters. They thought the degree of intrusion mattered, and that nobody using ordinary language would call the sisters' happy domestic lives a deprivation of liberty (press summary). Those are close to the factors AGNI now says can count.

What it did to DoLS

AGNI quotes the figures. Applications went from 14,346 in 2013-14 to 148,221 after the ruling, and reached 255,836 in 2018-19. The volume overwhelmed a scheme designed for relatively few applications (AGNI [99], quoting Dr Lucy Series).

Lady Hale had suggested the checks could be less elaborate than DoLS, which could be simplified and extended beyond hospitals and care homes ([57]).

Reading it after AGNI

The 2015 MHA Code still states the acid test (Code 13.44 and 13.45), and so does MoJ's supervised discharge guidance. Read both as overtaken by AGNI. DHSC says chapter 2 of the 2008 DoLS Code, written before Cheshire West, may still be a helpful starting point on the objective element.

If an older question asks for the test, give the acid test, then add that AGNI overruled it on 2 June 2026. The test now is multi-factorial, and contentment and valid consent can count.

Under the acid test, a person's contentment didn't matter. Now their compliance and lack of objection are relevant, if they're capable of objecting or giving tacit agreement (AGNI [53]).

The facts in more detail

MM had a mild learning disability, autism and a history of fire setting. Convicted of arson at 17, he'd been on a hospital order with restrictions since 2001, apart from a few months' conditional discharge in 2006 to 2007 ([2]).

At a 2015 tribunal his clinical team opposed discharge, though they thought a move to another low secure unit would help. Two external experts thought he could be managed in the community, on a care plan amounting to a deprivation of liberty. He had capacity, and he consented ([3] and [4]).

What the Supreme Court decided

By four to one, with Lord Hughes dissenting, the court held that neither the tribunal nor the Justice Secretary could impose such conditions ([38]). The general words of ss42 and 73 couldn't authorise a new form of detention without its own criteria and safeguards ([31]).

There were practical reasons too. Conditions can't be enforced, breaching them isn't an offence, and he could withdraw his consent at any time ([32]).

Lady Hale noted the irony that the Justice Secretary was relying on the right to liberty to keep MM in more secure conditions in hospital ([24]).

Supervised discharge since 18 February 2026

• The Justice Secretary. Can impose conditions amounting to a deprivation of liberty if satisfied they're necessary to protect the public from serious harm (s42(2A)).
• The tribunal. Can direct discharge on such conditions only if they're necessary to protect another person from serious harm. Living on them must be no less beneficial to the patient's mental health than staying in hospital (s73(2) and (5A)).
• Review. The patient can apply to the tribunal between six and 12 months after the conditions start, then every two years. The Justice Secretary must refer the case at 12 months (s75(2A) and (2C)).
• Who it's for. MoJ calls it the last option, not a stepping stone. It suits static, lifelong conditions, and isn't for anyone who can use regular unescorted leave (MoJ guidance 2.1 to 2.3).

MoJ's guidance still defines deprivation of liberty by the Cheshire West acid test, so that part is out of date after AGNI. See conditional discharge and recall.

If the patient lacks capacity

MM had capacity. A conditionally discharged patient who lacks capacity isn't wholly ineligible for DoLS or a Court of Protection order. It can't include treatment for mental disorder in hospital, and it mustn't conflict with their conditions ([26]; Sch 1A). That authority would come from the Court of Protection or DoLS, not the tribunal. The court left open whether the tribunal could defer its decision to allow for it ([27]).

The facts in more detail

PJ had a mild to borderline learning disability and autistic difficulties, with a history of violent and sexual offending. After an unrestricted hospital order in 1999 and detention under s3 in 2009, he left hospital on a CTO in September 2011 ([2] to [4]).

His conditions said he must live at a specialist care home, follow his s117 care plan and follow risk plans on staff supervision. In practice he was on 15-minute observations, escorted on every outing, with an absconding protocol allowing restraint as a last resort ([5] and [8]).

What the Supreme Court decided

Unanimously, the court held the Act gives the RC no power to impose CTO conditions that have the concrete effect of depriving a patient of liberty ([29]). It got there on ordinary statutory construction, without needing Article 5. It also doubted the European Court would accept such an ill-defined, ill-regulated power as meeting the Convention's standard of legality ([29]).

Had Parliament meant CTOs to allow detention in the community, the Act would say where, who could detain, and who could bring back someone who left ([28]).

What the tribunal can do

The tribunal can't vary CTO conditions. It can explain the true legal effect of a CTO to everyone involved, and its general power to discharge remains. Unlawful detention itself is a matter for habeas corpus or judicial review ([30] to [33]).

The court expected any conscientious RC simply not to impose such conditions. Managers must also tell CTO patients the effect of their order (s132A; [34]).

Writing CTO conditions now

• Look at them together. Ask whether the conditions, as a whole and as they work in practice, amount to a deprivation of liberty. After AGNI that's a multi-factorial judgement.
• Keep to the purposes. Conditions must be necessary or appropriate to ensure treatment, to prevent risk to the patient's health or safety, or to protect others (s17B(2)).
• Find another authority if you need one. A CTO patient who lacks capacity can sometimes have DoLS or a Court of Protection order. It mustn't conflict with the CTO or include treatment for mental disorder in hospital (Sch 1A paras 3 and 4).
• A change is coming. Once commenced, the 2025 Act will allow only necessary conditions, and a community clinician who isn't the RC must agree them (2025 Act ss22 and 23).

See community treatment orders for the rest of the CTO rules.

In the exam

PJ is the CTO case: an RC can't impose conditions that together deprive a patient of liberty. Pair it with MM, decided a few weeks earlier, on conditional discharge.

The facts in more detail

D was diagnosed with ADHD at four, Asperger's syndrome at seven and Tourette's syndrome at eight, and has a mild learning disability. At 14 he was admitted informally to a hospital unit with a locked external door, half-hourly checks and one-to-one escorts ([6]).

At 16 he moved to a residential placement, accommodated by the council under s20 of the Children Act 1989. The doors were locked, he had one-to-one support while awake, and he left only for planned activities ([8] and [9]). His parents agreed to each move. Nobody doubted the placements were in his best interests, but he lacked capacity to consent himself ([11]).

What the Supreme Court decided

By three to two, the court held it wasn't within his parents' parental responsibility to consent to a placement that deprived him of liberty ([49]). Lady Hale said a parent can't license the state to breach a child's most fundamental rights, including liberty ([48]).

Without Article 5's safeguards, she said, there's no way of making sure parental responsibility is always used in the child's best interests ([49]).

Lord Carnwath and Lord Lloyd-Jones dissented. Lady Hale expressly left open what the reasoning means for children under 16 ([50]).

Children under 16

Below 16, the first judge held that keeping D under constant supervision and control was a proper exercise of parental responsibility ([7]). The Supreme Court didn't decide the position for younger children ([50]), so take legal advice when a child under 16 is confined.

Re D and the Mental Health Act

For informal admission to hospital, the MHA already draws the line at 16. A 16- or 17-year-old with capacity who refuses can't be admitted informally on a parent's consent (s131(4)). If they consent, a parent can't override that either (s131(3)). The 2015 Code, which predates Re D, uses the term scope of parental responsibility, so read its guidance with the judgment.

What it means in practice

Once a young person is 16, parental agreement can't authorise a confinement the state is responsible for. DoLS starts at 18 (MCA Sch A1 para 13), so the usual route is the Court of Protection or the High Court's inherent jurisdiction (DHSC, September 2026). If they need hospital treatment for mental disorder, the MHA may apply instead.

Lady Hale expected the Liberty Protection Safeguards to cover 16- and 17-year-olds ([49]), but they aren't in force. DHSC says AGNI's definition applies to children's cases in both courts. See children and young people.

In the exam

Questions test the age line. Parents can't consent to a 16- or 17-year-old's confinement (Re D), DoLS starts at 18, and most of the MCA applies from 16.

The facts in more detail

JB was 38 and lived in a supported placement funded by the local authority. His care plan restricted his community access, contact and internet use, with one-to-one supervision in the community, especially around women ([10] and [11]).

The parties agreed he lacked capacity to decide about his residence, care, contact and internet use. The dispute was about sexual relations ([2]). His care plan reflected a history of inappropriate sexual behaviour towards women, which the judgment linked to his Asperger's syndrome ([20]).

What the Supreme Court decided

• The relevant information. It includes the fact that the other person must be able to consent, and must consent before and throughout ([121]).
• One test. Section 2(1) is the single test. The parts of s3 explain it rather than adding separate tests ([65]).
• A clear causal link. The inability to decide must be because of the impairment or disturbance, with a clear causative nexus between them ([78]).
• Consequences for others count. The reasonably foreseeable consequences can include harm to other people, not just to the person ([73]).
• No higher bar. Don't expect someone to foresee more consequences, or weigh them more finely, than a person with capacity would ([75] and [77]).
• Fluctuating capacity. Capacity is decided for the specific decision at the time it's needed. If it fluctuates, the assessment should say so ([64]).

General or person-specific?

Decisions about sex are usually assessed generally, about the nature of the activity rather than a particular partner ([71]). They can be person-specific, though, for instance a long-standing couple where one partner develops dementia. Then the relevant information may differ ([71] and [72]).

Using it in a capacity assessment

1. Define the matter: the specific decision, in its real context ([68] to [70]).
2. List the information relevant to that decision, including the foreseeable consequences of deciding either way (s3(4)).
3. After all practicable help, ask whether they can understand, retain, use or weigh it, and communicate a decision (s1(3) and s3(1)).
4. Only if they can't, ask whether that's because of an impairment of, or disturbance in the functioning of, the mind or brain (s2(1)).
5. Record each step. See how to assess capacity.

The outcome

The court dismissed JB's appeal and sent the case back to the judge to reconsider his capacity on the right information ([121] and [122]). Nobody can consent to sexual relations on someone else's behalf (MCA s27(1)(b)).

In the exam

Cite JB for the order of the test, function first and then cause, and as the leading case on capacity for sexual relations. It also shows that consequences for other people can be relevant information.

What the court was asked

Northern Ireland's health minister wanted to revise its DoLS Code to say that people lacking capacity can validly consent through their expressed wishes and feelings. The Attorney General asked the Supreme Court whether that would breach Article 5.

It was heard on 20 to 22 October 2025. Lord Sales and Lady Simler gave the judgment, with which the other five justices agreed (press summary).

To answer it, the court had to decide whether to depart from its own decision in Cheshire West. It did, under the 1966 Practice Statement ([53]).

Six things Cheshire West got wrong

• The acid test isn't enough. It may be relevant, but you must look at the whole concrete situation ([184]).
• Compliance can matter. Lack of objection can be relevant to whether someone is confined at all ([187] to [192]).
• The setting matters. Living at home or in the community is a relevant factor ([193]).
• Innate limits aren't confinement. Restrictions must be imposed from outside, not come from the person's own condition ([195]).
• Purpose can matter. Care and protection sit further from a prison cell than punishment or coercion ([130] and [200]).
• Capacity isn't consent. Lacking capacity under the MCA doesn't rule out valid consent ([201]).

The test now

Start with the person's specific situation. Weigh the type, duration, effects and manner of implementation of the measures; no single factor decides it ([53]). In a borderline case, compare it with imprisonment in a cell.

Valid consent needs someone conscious of their surroundings, with a basic understanding of their situation, who shows they accept it. Where there's serious doubt, don't infer consent ([53]).

What DHSC says to do now

• When in doubt, apply. Refer borderline cases for review. Use DoLS or the court where there's any doubt about consent, or the restrictions are significant.
• Watch for objection. Signs include trying to leave, refusing or pushing away care, needing restraint or one-to-one care, covert medication for someone who objects, and sedation that affects their ability to object.
• Review existing authorisations. Do it as soon as practicable. Leaving one in place meanwhile isn't unlawful, and restrictions can be reduced within it without a new authorisation.
• Keep the safeguards running. Councils should keep independent advocacy and relevant person's representatives in place where they apply.
• Expect fewer. In the long run DHSC expects far fewer authorisations.

AGNI changes what counts as a deprivation of liberty, not the MHA's criteria. It gives CTOs and conditional discharge no new powers, and the LPS remain uncommenced. More on deprivation of liberty after AGNI.